JUDGMENT BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Dhaval Shah for learned advocate Mr. Paresh Sheth for the appellant and learned Senior Standing Counsel Mr. Ankit Shah for the respondent. 2. This appeal is admitted by order dated 15.02.2008 passed by this Court [Coram:Hon’ble Mr. Justice M.S.Shah (as His Lordship was then) and Hon’ble Mr. Justice Ravi R. Tripathi (as His Lordship was then)] on following substantial questions of law: “(i) Whether the Tribunal has substantially erred in law in holding that the credit of duty paid on the input, purchased on High Seas basis is not allowable, only because the bills of entries were filed in the name of the original importer? (ii) Whether the Tribunal substantially erred in law in not considering the decision dated 07.01.1999 of Commissioner (Appeals) which, while remanding the matter, had required the adjudicating authority to ascertain certain facts as indicated in the said order dated 07.01.1999 (Pages 35 and 36 of the compilation)?” 3. The appellant is engaged in the business of manufacturing of Brass Rods and Sections falling under Chapter 74 of the Central Excise Tariff Act,1985 [for short ‘the Act’] and was also holder of Central Excise Registration No. AR-III/8/92 dated 30.06.1992. 3.1 A show-cause notice dated 19.10.1994 was issued demanding duty of Rs.5,12,257/- issued by the Assistant Commissioner of Central Excise, Jamnagar, on the ground that the appellant did not file claim under Rule 57H of the Rules as the appellant was not entitled to avail the credit under Sub-rule 1(b) of Rule 57H of the Rules as the statement of stock of raw materials lying with the appellant was wrong as per clause (a) of sub-rule 1B of Rule 57H of the Rules and that in terms of clause (a) of sub-rule 1B of Rule 57H of the Rules, there was no evidence as to how the input have been used in the manufacture of final product. 3.2 Thereafter, another demand-cum- show cause notice dated 03.01.1995 demanding duty of Rs. 2,94,391/- was issued by the Superintendent of Central Excise, A.R. III, Jamnagar on the ground that the appellant availed MODVAT credit on the basis of the bills issued by the importer though the bills were not issued in accordance with the procedure as prescribed under the Notification Nos. 2,94,391/- was issued by the Superintendent of Central Excise, A.R. III, Jamnagar on the ground that the appellant availed MODVAT credit on the basis of the bills issued by the importer though the bills were not issued in accordance with the procedure as prescribed under the Notification Nos. 32 and 33 of 1994 dated 04.07.1994 and the importer did not issue bills as prescribed under Rule 57GG of the Central Excise Rules, 1944 (for short ‘the Rules’). 3.3 The Assistant Commissioner of Central Excise, Jamnagar, decided the notice dated 03.01.1995 by order dated 16.06.1995 by confirming the demand of Rs. 2,94,391/- and imposed penalty of Rs. 50,000/- and by order dated 21.06.1995, disallowed the credit of Rs. 5,12,257/-. 3.4 Being aggrieved by the Orders-in- Original dated 16.06.1995 and 21.06.1995, the appellant preferred an appeal before the Commissioner (Appeals) who, by order dated 22.11.1996, set aside the Orders- in-Original for re-determination and remanded the case back to the appellate authority. 3.5 In pursuance of the order of the Commissioner (Appeals) dated 07.01.1999, the original authority decided the matter afresh by order dated 06.02.2002 against the appellant and on further appeal, the Commissioner (Appeals) by order dated 01.05.2006 dismissed the appeal. 3.6 Being aggrieved, the appellant preferred appeal before the Customs Excise and Service Tax Appellate Tribunal, West Zone, Ahmedabad [for short ‘the CESTAT’] by preferring an Excise Appeal No. 1668/2006. The CESTAT, by the impugned order dated 30.05.2007, partly allowed the appeal so far as the credit claimed in respect of two Bills of Entry is concerned subject to confirmation by the original authority that the consignments covered by both these Bills were originally covered by the show-cause notice and appeal in respect of the consignments covered by the other Bills of Entry were rejected. 3.7 It was case of the appellant before the respondent-authority during hearing of the show-cause notice that denial of Cenvat Credit amounting to Rs. 5,12,257/- taken and availed by the appellant relates to the consignments received under five Bills of Entry, out of which, two Bills of Entry bearing No. 2088 and 7283 were in name of the appellant and the other three Bills of Entry were not in their name but the same were covered by the High Sea Sale Agreement between the appellant the original importer. Therefore, in respect of the two Bills of Entry being No. 2088 and 7283 were covered by the show-cause notice, the consignment were imported by the third parties but there was High Sea Sale Agreement between the appellant and the original importer and there was no dispute that the consignment was received in factory and the denial of credit therefore was not proper and legal. 3.8 Whereas, on the other hand, it was the case of the Revenue that in respect of two Bills of Entry which covered the import by the appellant the matter may be decided on merits as the name of the appellant was duly reflected in both the Bills of Entry and as regards the imports covered by the other Bills of Entry which were claimed to have been procured on High Sea Sales Basis, the claim of the appellant was not brought out from the record as the Bills of Entry which were filed by the other persons and such documents were not endorsed in favour of the appellant hence, the same were not valid for the purpose of Cenvat credit. 3.9 The Tribunal, after considering the submissions of both the sides, held as under: “5.1 I have carefully considered the submissions made by both sides. As regard the first show cause notice dated 19.10.94 there is confusion as to whether five consignments are involved or only 4 consignments are involved. However, the learned advocate for the appellant submits copies of 2 bills of entry No. 2088 and 7283 which are annexed to the declaration filed by the appellant on 16.5.1994 and claims that they are straightway covered as valid duty paying documents and credit should be allowed. This view is, prima facie, acceptable and requires to be confirmed by the original authority as the show cause notice refers to only one in the name of the appellant himself. 5.2 As regards consignment covered by other bills of entry the claim that they are imported by the appellant on a “high sea sale” basis is not proved. The high sea purchaser steps into the shoes of importer and has to file bills of entry with the customs. As the bills of entry are not in the name of appellant, this claim is not acceptable on extraneous grounds. Commissioner’s finding in this regard is legally sustainable. 6. The high sea purchaser steps into the shoes of importer and has to file bills of entry with the customs. As the bills of entry are not in the name of appellant, this claim is not acceptable on extraneous grounds. Commissioner’s finding in this regard is legally sustainable. 6. In the light of the above appeal is partly allowed so far as the credit claimed in respect of bill of entry No. 2088 and 7283 is concerned subject to confirmation by the original authority that the consignments covered by both these bills were originally covered by the show cause notice. Appeal in respect of consignments covered by other bills of entry are rejected. However, considering the facts and circumstances of the case, penalty imposed is set aside.” 4. Learned advocate Mr. Dhaval Shah for the appellant submitted that the Tribunal has committed an error by holding that it was mandatory that the name of the appellant should be reflected in the Bill of Entry filed by the importer more particularly, when the appellant has entered into the transaction on High Sea Sales basis as per Rule 5A of the Imports (Control) Order, 1955 which stipulates sale on High seas may be made in respect of the goods which can be imported without a license in terms of the Exports and Import Policy. 4.1 It was submitted that the Act, 1985 or the Rules or the Notifications No. 32 and 33 of 1994 do not provide that the Bill of Entry has to be filed in name of the purchaser who imports the goods but it is only to be seen that the goods have reached to the place of business in factory of the person who claims to have imported on High Sea Sales basis. It was therefore submitted that the Tribunal could not have rejected the claim of the petitioner for Cenvat credit only on the ground that the name of the appellant was not reflected in the Bill of entry. 5. On the other hand, learned Senior Standing Counsel Mr. Ankit Shah for the respondent submitted that the appellate authority has considered in detail the aspect of filing of Bill of entry by the importer when the matter was remanded back to reconsider the issue of granting of Cenvat credit on the import made by the appellant on High Sea Sales basis. 6. Learned advocate Mr. Ankit Shah for the respondent submitted that the appellate authority has considered in detail the aspect of filing of Bill of entry by the importer when the matter was remanded back to reconsider the issue of granting of Cenvat credit on the import made by the appellant on High Sea Sales basis. 6. Learned advocate Mr. Shah invited the attention of ht Court to the findings of the appellate authority in this regard which reads as under: “In respect of SCN No.AR/III/Mukund/SCN/94 dated 03.01.1995 amounting to Rs.294191.20, the noticee had availed the benefit of MODVAT credit of duty on inputs in the month of August-94 and September-94 on the basis of bills issued by two importers viz. M/s. Marvel Udyog, Jamnagar and M/s. Prakash Impex, Jamnagar were not in accordance with the procedure as prescribed under Notification No. 32/94-CE(NT) and 33/94/(NT) both dated 04.07.1994 it is much as the Importer have not issued the following said bills as prescribed under Rule 57 GG of the Central Excise Rule. 1944. The MODVAT credit initially would be allowed only on invoices of manufacturer or his depots and on the invoices of wholesaler dealer of the manufacturer who in turn receive the goods from the manufacturers factory or his depot vide Notification No. 15/94 CE(NT) dated 30.03.94. This Notification was very restrictive. Subsequently, the Board have issued Notification No. 32/94- CE(NT) and 33/94-CE(NT) both dated 04.07.1994 in superceding Notification No. 15/94 CE(NT) dated 30.03.1994. This allowed MODVAT credit on the strength of the voices issued by all dealers and Importers including the Depots of the manufacturer but who are registered with the Central Excise Department under Rule 174 of Central Excise Rule, 1944. The Notification No. 32/94 CE(NT) and No.33/94 CE(NT) dated 04.07.1994 interalia, provided that invoices issued by the manufacturer -from the depots, dealers and importers of excisable goods and imported goods would be valid for MODVAT purpose subject to various conditions which are prescribed including conditions incorporated under Rule 57 GG of the Central Excise Rules, 1944. One of the fundamental condition for the invoices (issued by such category or person) to be valid legal documents was the registration of the person issuing the invoices in terms of Rule 174. One of the fundamental condition for the invoices (issued by such category or person) to be valid legal documents was the registration of the person issuing the invoices in terms of Rule 174. The invoices also were supposed to contain particulars as per prescribed format on or after 04.07.1994 were no longer valid documents for extending MODVAT credit in terms of Rule 57 G of Central Excise Rules 1944. As regards the Noticee had taken another stand and argued that they have purchased the goods on High Seas sales basis to avail the MODVAT credit. It is observed that only furnishing agreement for High Seas sale, the goods sannot be qualified for the purpose to avail of MODVAT facility. On perusal of the Bill of Entry No.006795 and 006553 it revealed that the importers are M/s. Marvel ANAGAR DIST Udyog, Jamnagar and M/s. Praksh Impex, Jamnagar and the same Bill of Entries are not endorsed in favour of the noticee (M/s. Mukund Brass Industries, AEG Jamnagar). In such cases where the importers sells the goods to a manufacturer have to endorse the bill of Entry about the facts of such sale and also declare on that no MODJAVAT credit has been availed of by him or that the has not applied for refund or he will not be applying for refund or countervailing duty before the Customs Department; such an endorsement should constitute valid evidence in the hand of manufacturer who has purchased such goods from such an importer. In this case there is no endorsement on the bill of entry as well as no declaration available in their Bill of Entries. It is seen that entire consignment was sold by the Importer to the Noticee. They should have endorsed the Bill of Entry in favour of Noticee and should certify on the bill of Entry that he has not taken any credit of duty in respect of the goods covered by Bill of entries in respect of full consignment. It is seen that entire consignment was sold by the Importer to the Noticee. They should have endorsed the Bill of Entry in favour of Noticee and should certify on the bill of Entry that he has not taken any credit of duty in respect of the goods covered by Bill of entries in respect of full consignment. This office had conducted an inquiry with the Customs Kandla which revealed that the aforesaid two importers who cleared the goods for home consumption have not made high seas sales agreement to the noticee for the consignment covered under the aforesaid two Bills of Entries Also on inquiry with the importer M/s. Marvel Udyog, Jamnagar and M/s. Prakash Impex, Jamnagar reveals that Bills of Entries were filed by them because the sale agreement was not accepted by the Customs Authority as it was not made according to the provision of the Act. They confirmed this view vide their letter dated 13.06.1995. In relation to the documentary evidences adduced by the Noticee at the time of Personal Hearing as a secondary evidence that the import application claimed by the importers only and not by the noticee indicating due receipt of the goods and its removal from the port premises. In view of these, the noticee have fabricated a story of high sea sales by entering in to an agreement in a plain paper with the importers, in fact no such high sea sale transaction is involved in this case. Therefore, it is held that Noticee has created false High Sea sale just to take undue benefit of MOD VAT credit of countervailing duty which was not legally available to the Noticee as they were quite aware that the bills issued by the importers are not valid documents in terms of Notification No.32/94-CE (NT). .... ..... ..... .... On verification of the documents filed by the Noticee, the amount of Rs.542654/-in respect of Bill of Entry No. 6553/27.07.1994 has been paid only by the Importer M/s. Prakash Impex, Jamnagar by Challan dated 19.09.1991 vide their demand draft No.318367 dated 17.09.1994. It is also seen that the Import Application was filed by the CHA on behalf of only importer M/s. Parekh Impex, Jamnagar and not on behalf of the noticee. It is also seen that the Import Application was filed by the CHA on behalf of only importer M/s. Parekh Impex, Jamnagar and not on behalf of the noticee. Therefore it is fact that importer did not intend to avail MODVAT credit at the time of import and accordingly not filed any declarations with the appropriate Customs with the Bills of Entry. Thus it appeals that they intended to sell the imported goods to actual consumers rather than 'any manufacturer who may in turn claim MODVAT credit. On verification, by Customs Authority, they denied that they have not received any declaration from the importer/their CHA. "From the copies of the Bill of Entries enclosed with your above D.O. letter, it is noticed that the name of the Importers who imported the goods are mentioned in the relevant column therein only. Hence, it is observed that no High Seas Sale were made to M/s. Mukund Brass Industries, Jamnagar by the Importer." Besides, the Noticee have failed to furnish evidence to Show that the inputs that went in the manufacture of final products were cleared after filing the declaration made under Rule 57G i.e. after 16.05.1994. It is therefore held that the Noticee is not entitled to the benefit of Rule 57H because the statutory, requirements have not been complied with. The point of high seas sale was raised only during the course of Personal hearing. The same was not discussed anywhere in the defence submission. This point is an after thought just to achieve a goal to justify the admissibility of their claim under Rule 57H. In fact no high seas sale is transacted in the case. Causal of photocopies of Bill of entry reveals that the importer are other than the Noticee and no endorsement regarding High Seas Sale embodied on the body of the Bill of Entry.” 6.1 Referring to the above findings, it was submitted that the appellate authority and the Tribunal considering the facts of the case have rightly not granted the benefit of Cenvat Credit to the appellant on the three Bills of Entry where name of the appellant was not reflected as the same were not found to be in order. 7. We have considered the rival submissions of both the sides and also perused the orders passed by the Appellate Authority and the Tribunal. 7. We have considered the rival submissions of both the sides and also perused the orders passed by the Appellate Authority and the Tribunal. The Appellate Authority, after considering the facts of the case, has held as under: “[IX] Now I proceed to examine the issue on-merits. The lower authority in his denovo order has discussed in detail in respect of all the issues covered in both the S.C.N.s. In respect of SON dated 31.01.95 as rightly held by the Assistant Commissioner the high sea sales issue was not raised in the S.C.N. It was only on the denial of credit on the bills/invoices issued by the two importers namely M/s Marvel Udhyog, Jamnagar and M/s. Prakash Impex, Jamnagar the appellants appears to have raised the issue of high sea sales. The Assistant Commissioner's findings that the bills on which credit has been availed on invalid documents appears to be fully justified. As regards, the appellants contentions that, these goods are purchased from high sea sales basis to avail modvat credit the lower authority has analyzed all the appellants contentions in the relevant OIO, in detail and established that there was no high sea sales between the importers and the appellants in respect of above goods. The appellants also submitted all the relevant documents, with their appeal which was verified by the lower adjudicating authority and given his findings in the OIO. On the perusal of the alleged high sea sales agreements and Bills of Entry and other documents submitted by the appellants along with appeal as well as during the course of Personal Hearing, it is seen that the lower authority has already given clear finding on these very documents. The high seas sale agreement is a legal document prescribed under the Customs Act read with Customs import Regulations, as well as Import Policy Regulations with terms and condition. In order to qualify for high sea sales transaction between the original importer and buyer among other condition the following prime conditions have to be met for the high sea sales; (1) Full payment of cost of documents comprising of CIF value, bank interest, bank charges and any other charges to be made by the seller to us. In order to qualify for high sea sales transaction between the original importer and buyer among other condition the following prime conditions have to be met for the high sea sales; (1) Full payment of cost of documents comprising of CIF value, bank interest, bank charges and any other charges to be made by the seller to us. All the rights and title of the above goods will be transferred by us to the buyer by endorsing of the above Bill of Lading in favour of the said buyer after the documents have been retired from the bank. (2) In view of the disposal of the goods on HIGH SEAS SALES, the buyer shall arrange clearance of the goods viz. payment of Customs duties, Clearing. Charges Demurrages, etc. directly to the Customs / clearing Agent.. No Sale Tax will be charged as the above goods are being delivered to the buyer on HIGH SEAS SALES BASIS" In terms of the above conditions in the Agreement any High sea sales transaction involves relinquishing the title of the goods by endorsing the Bill of Lading in favour of the buyer. The second important condition for the High sea sales transaction that, it is the buyer i.e. appellant shall arrange for clearance of the goods from Customs authority and payment of appropriate Customs duties and other charges including clearance from Port Trust's charges, demurrage charges, clearing charges etc. The buyer should process the B/E and pay the duties and dues directly to the customs and port trust / CHA etc. Whereas in the present case none of the above conditions appears to have been met by the appellant. The undersigned perused the original triplicate copy of Bills of Entries B/E No. 006795 & 006553 and noticed that the B/E's were originally filed by the importers on arrival of the vessel and the same were assessed by the customs for clearance for home consumption. Further on perusal of the original TR-6 challans dated 11.08.1994 and 19.09.1994 in respect of M/s. Marvel Udhyog, Jamnagar and M/s. Prakash Impex, Jamnagar, the customs duties were also paid by the respective importers only, and not by the appellant. It is also seen from the original Kandla Port Trust documents dated 03.08.1994 and 26.07.1994 that Port trust charges were paid only by the importer and the port trust had allowed this consignment to be removed to the said importers. It is also seen from the original Kandla Port Trust documents dated 03.08.1994 and 26.07.1994 that Port trust charges were paid only by the importer and the port trust had allowed this consignment to be removed to the said importers. As such it is evident that from the time of importation and till clearance of the goods either from the customs or from the port trust, the title of ownership continued to be vested with the main importers only. It is noticed that from the transport documents dated 19.09.94 raised by M/s. Prime Forwarders the ownership shown as Prakash Impex not the appellants and the goods were transported from Kandla port to the importer premises not to the appellant premises. [X] Under Customs Import Regulations, High sea sales is a common activity. The normal legal procedure for any High sea sales clearance is that the bills of entry will be noted by the Customs only in the name of the High sea sales buyer after retiring the Bank documents or there will be amendment made in the bill of entry if already noted. All the clearance formality have to be carried by the High-sea-Sales buyer not by the importer, including the Customs liabilities, disputes, adjudication etc. The Assistant Commissioner had confirmed from the Kandla Customs authorities that these Bills of entries were cleared by the importers for home consumption, it is quite evident that there was no high sea sales agreement to the appellant, which in turn also confirms that there was no high sea sales transaction. Further it is also noticed that the impugned good imported by M/s. Prakash Impex, Jamnagar were allowed clearance on provisional assessment basis on execution of provisional assessment bond dated 25.07.1994 by the main, importer to the customs authorities. Had there been a real High sea sales transaction, it is the appellant who should have executed the PD bond before the customs not the importer. Therefore there are enough justifications, in the impugned order of lower authority holding that, the so-called High-sea-sales agreements and other documents were created as an after-thought and the alleged sale agreements contradict with their other vital imports documents.” 8. Therefore there are enough justifications, in the impugned order of lower authority holding that, the so-called High-sea-sales agreements and other documents were created as an after-thought and the alleged sale agreements contradict with their other vital imports documents.” 8. In view of the above findings of fact arrived at by the appellate authority and confirmed by the Tribunal it is clear that there is no real High Sea Sale Transaction executed by the appellant as no PD Bond was executed before the Customs authority as the same was executed by the original importer and therefore, it was rightly held by the authorities that there was enough justification in holding that the so called High Sea Sale Agreements and other documents were created as an afterthought and the alleged sale agreements contradict with the other vital documents for import of the goods. 9. Therefore, the Commissioner of Appeals has rightly come to the conclusion which is upheld by the Tribunal to hold against the appellant. We are therefore of the opinion that it cannot be said that the Tribunal has committed any error in holding that credit of duty paid on input purchase or High Sea Sale is not allowable for three Bills of Entry though the Bills of Entry were filed in name of the original importer in view of the findings of facts arrived at by the appellate authority and the Tribunal. 10. Therefore, we answer the Question No.1 in negative i.e. in favour of the Revenue and against the assessee. 11. So far as Question No.2 is concerned, we are of the opinion that the same relates to the findings of fact and therefore, we decline to answer the same. The appeal therefore, is accordingly dismissed.